In State v. Dailey, 2007 WL 4341216 (Ohio App. 8 Dist. 2007), Timoty Dailey appealed his conviction for attempted burglary to the Court of Appeals of Ohio. At Dailey's trial, Betty Keys had testified that at approximately 9:30 A.M. on June 20, 2006, she saw a blue car illegally parked in front of her house and saw a man walk across her front yard. The man then opened a screen door on the side of her house and began pounding loudly on the door; Keys assumed that the man was trying to break in because he did not ring the door bell and because the pounding was extremely loud.

Keys then hid in her kitchen and saw the same man standing in her kitchen window, unsuccessfully trying to push open the screen on the window. Subsequently, she called 911 and saw the man put his hands around his face and peer through the window as she waited for the police. Police Officer Keith Collins then arrived at Keys' house and saw a male get into an illegally parked blue car, and he unsuccessfullty attempted to chase the blue car. Keys' neighbor, however, told the officer that he saw the man who entered the blue car and later positively identified Dailey as the man from photographs. Upon being apprehended, Dailey gave differing accounts of where he was at the time of the alleged attempted robbery to police detective Dennis Bergansky. He first told him that he was not anywhere near Dailey's house at the time of the incident, but then he claimed that he had gone to Keys' home to find a friend who used to live there.

At Dailey's trial, the prosecutor asked Bergansky, "[b]ased on your experience, as a detective and officer, investigating those kinds of crimes, what is the modus operandi, if you will, of a daytime burglar?" Over defense counsel's objection, Bergansky responded, "[l]ately, we have been getting hit, the whole area, with daytime burglaries. The-the protocol for the way they do it is, the burglar will knock on the door usually, sometimes two people, they will knock on the door, ring a doorbell of a house that looks like somebody is gone, at work, or it's vacant, and, when no one answers, either the door gets booted in, or a window gets broken in, and they make entry into the house. I mean, it's common place. It happens constantly, too often."

On appeal, Dailey contended, inter alia, that the trial court erred in allowing Bergansky to provide this "modus operandi" testimony. Pursuant to Ohio Rule of Evidence 404(b), "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent. preparation, plan, knowledge, identity, or absence of mistake or accident." Ohio has determined that proving modus operandi, a "unique, identifiable plan of criminal activity" or "behavioral fingerprint," is a permissible purpose under Rule 404(b). See, e.g., State v. Myers, 780 N.E.2d 186, 210 (Ohio 2002).

Thus, evidence that a defendant committed 3 prior robberies would be inadmissible to prove that he had a propensity to commit robberies and acted in conformity with that propensity at the time of the attempted robbery with which he was charged. However, if all 4 of the robberies were so similar that they established a "unique, identifiable plan of criminal activity" or "behavioral fingerprint" such that it must have been the same person who committed all 4 crimes, evidence of the prior robberies would be admissible to show the modus operandi of the defendant.

Dailey claimed on appeal that Bergansky's testimony was insufficient to establish modus operandi and that his testimony thus was improper under Rule 404(b). The Court of Appeals of Ohio, however, cited to the Staff Notes to Rule 404(b) for the alleged conclusion that Rule 404(b) only "prohibits evidence regarding other acts of the accused to show that he committed the crime with which he is charged." The court then concluded that "Detective Bergansky's testimony said nothing about any other criminal acts or burglaries by Dailey. His testimony related only to daytime burglaries in general; there was nothing specific about Dailey.

I have two issues with the court's decision. First, Detective Bergansky's testimony was in response to the prosecutor's question about "modus operandi." Modus operandi is a "unique, identifiable plan of criminal activity" or "behavioral fingerprint." If the court is correct, and Detective Bergansky's testimony was contending that there were general, shared characteristics of daytime burglaries, his testimony was saying there was no modus operandi, making it non-responsive and impermissible. The only way that Detective Bergansky's testimony was responsive would have been if he were implying that Dailey was the culprit in all of the daytime robberies, which would have triggered the exclusionary portion of Rule 404(b).

The second problem with the court's decision was its finding that Rule 404(b) only "prohibits evidence regarding other acts of the accused to show that he committed the crime with which he is charged." Simply put, this is an incorrect characterization of the Rule. Prosecutors can use Rule 404(b) to introduce evidence of other acts of the accused for purposes such as proving modus operandi, but they are precluded by Rule 404(b) from introducing evidence of other acts of the accused to prove propensity/conformity.

Contrary to the court's finding in Dailey, however, Rule 404(b) does not cover only other acts of the accused. Defendants can also use the Rule to introduce so-called reverse 404(b) evidence, under which the defendant introduces evidence of other acts of someone besides himself to prove that the other person was the likely perpetrator of the crime. United States v. Della Rose, 403 F.3d 891, 894 (7th Cir. 2005). Thus, the court's conclusion was based upon an impermissibly restricted construction of Rule 404(b).